Bush Deals Race Card Into Pot For Contracts

Conservatives Condemn Affirmative-action Reversal

August 11, 2001|By Eric Lichtblau, Washington Bureau

WASHINGTON -- In the most closely watched affirmative-action case in recent years, the Bush administration Friday defended a federal program that uses race as a factor to create a "level playing field" in doling out billions of dollars in government contracts.

The defense of the racial set-aside program, after Bush's decision Thursday to allow limited stem-cell research, was the second time in as many days that the administration has disappointed conservatives on a hot-button issue.

The Justice Department's position, coming in a case that will be heard in the coming months by the U.S. Supreme Court, marked a departure from President Bush's past opposition to government quotas or racial preferences. Some of Bush's top legal advisers -- including Attorney General John Ashcroft -- have spoken out even more strongly in condemning affirmative action.

The administration, in a brief filed late Friday, asked the Supreme Court to uphold a federal program that seeks to set aside a share of government transportation contracts for disadvantaged minorities and women.

Civil-rights activists hailed the administration's position.

But conservatives, angered by what they saw as a missed opportunity to repudiate affirmative action, accused Bush of retreating from his campaign pledges so he could avoid alienating minority voters.

"This administration has given up all pretense of principle," said Larry Klayman, head of a conservative Washington interest group called Judicial Watch. "Coming on the heels of the stem-cell research decision, this decision is going to create a lot of problems for Bush with true conservatives."

But administration officials rejected charges that they were pandering to minority voters by defending the affirmative-action program.

"This is John Ashcroft doing what he said he was going to do during his confirmation process -- that is, when there's a good-faith argument that can be made to defend a federal statute, he'll make it," Justice Department spokeswoman Mindy Tucker said.

In the 50-page brief, the Justice Department said the transportation program is narrowly tailored to set aside government contracts for disadvantaged business people who can show they have suffered discrimination.

The program "is not unconstitutional on its face," Solicitor General Theodore Olson told the court.

"It is designed to ensure that aid recipients only employ race-conscious remedies as a last resort. . . . The program thus is designed to avoid bestowing undue benefits on [disadvantaged business enterprises] and to create as level a playing field as constitutionally possible," Olson wrote.

`DISADVANTAGED' DUE 10%

At issue is a measure reaffirmed by Congress in 1998 that sets aside 10 percent of the billions of dollars spent each year on highway and transit contracts for "disadvantaged business enterprises." The law presumes that businesses headed by "black Americans, Hispanic Americans, American Indians, Asian Pacific Americans and other minorities" are socially and economically disadvantaged.

The Supreme Court agreed in March to hear a challenge to the law from the owner of a Colorado company called Adarand Constructors Inc., who said he submitted the lowest bid to erect guardrails on a stretch of federal highway but lost the job to a Hispanic-owned company. Under an earlier version of the federal program, the government offered a cash bonus of $10,000 to the prime contractor for hiring the minority-owned company.

COURT'S 2ND LOOK

This is the second time the high court will look at the Colorado case. In a 1995 decision arising from the same complaint, the court's conservative majority said racial classifications and set-aside programs are "inherently suspect," and it raised the bar for their use, saying the government must aim to remedy a specific, provable case of discrimination.

That earlier decision, following a judicial pattern of reining in affirmative-action programs deemed overly broad, led to changes across the country in how federal transportation contracts are awarded.

But activists on both sides of the issue are now looking to the Supreme Court to resolve lingering questions about when race-based decisions are acceptable in government contracting -- and, potentially, in schools, the workplace and other fields as well.

"This is a case that we're watching very, very closely," said Hilary Shelton, a spokesman for the National Association for the Advancement of Colored People. "This case will set the tone for the debate in America."